On May 29, 2012, the Philippines witnessed history when the Senate, sitting as an impeachment court, handed down its first-ever verdict of conviction. No other impeachment proceeding had gone this far in Philippine constitutional practice. Easily passing the 16-vote threshold to convict with a vote of 20-3, the Senate found Chief Justice Renato Corona guilty of failure to disclose to the public his statement of assets, liabilities, and net worth as required under the Philippine Constitution. This act of non-disclosure was, in the opinion of the senator-judges, an act of betrayal of public trust and a culpable violation of the 1987 Philippine Constitution.
The Philippines is now moving forward from the impeachment, and the country looks to President Benigno Aquino III to appoint Corona's successor. It is here and now that a constitutional vacuum is evident.
Prior to the adoption of the 1987 constitution, the Philippine appointment and confirmation process of high officials followed closely to the US model with the Senate acting as the confirming body for presidential appointees. However, the 1987 constitution introduced a novel Judicial and Bar Council (JBC) for the purpose of pre-screening candidates to create a pool from which the President may choose and appoint. Once appointed, no other confirmation process follows. In particular, Section 8, Article VIII provides for the creation of a JBC that is supervised by the Supreme Court of the Philippines and whose composition includes the chief justice acting as ex officio chairman of the JBC: "The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it." Section 9 provides that the president shall appoint members of the Supreme Court "from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy."
The foregoing constitutional setup was designed by the 1986 Constitutional Commission as a way to depoliticize the process of appointing judges and justices, and exists neither in the 1973 Philippine Constitution nor in the US Constitution.
Aside from recommending nominees for vacant judicial positions, the JBC also performs the same tasks for the nomination and appointment process of the ombudsman and deputy ombudsman, as provided for in Article XI, Section 9:
The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.In sum, the JBC is a constitutionally created body with the sole purpose of recommending nominees for vacancies in the judiciary, the ombudsman and the ombudsman's deputies to the president for appointment. It is clear that the president may only appoint from the short list created by the JBC. Joaquin Bernas, a renowned legal expert and a member of the commission that drafted the 1987 constitution, categorizes the power of the JBC as essentially executive and argues that it has no interpretative power conferred to it by the constitution.
As required by the constitution, the JBC is composed of eight members — four as ex officio members and the other four as regular members appointed by the president with the consent of the Commission on Appointment. The ex officio members are the chief justice of the Supreme Court as chairman, the secretary of justice and a representative from both the House of Representatives and the Senate. The regular members are composed of a representative of the Integrated Bar, a professor of law, a retired justice and a representative from the private sector.
It is clear that the chief justice of the Supreme Court serves as the ex officio chairman of the JBC. Pursuant to Section 4 of Administrative Matter No. 03-11-16-SC(2), which was promulgated by the Supreme Court in 2004:
Ex-officio Chairman shall be responsible for the management of the execution of the policies, rules and programs of the JBC...shall exercise decision-making authority over all operational matters, and may delegate such authority to lower level management personnel.The order details specific functions including administrative authority, enforcement of "all laws, rules and regulations pertaining to such mandate," as well as the submission, administration and accounting of the JBC budget. The chairman shall also "implement and enforce all policies, rules, regulations and resolutions adopted by the Council En Banc." Additionally, the chairman has delegation authority concerning operation functions and is able to appoint employees and officials to the JBC — as well as any other powers or responsibilities granted by the Supreme Court.
Therefore, the chief justice, as ex officio chairman, is essentially the presiding officer and implementer of the decisions of the JBC. The constitution mandates that any vacancy in the judiciary (in this case the chief justice) must be filled by presidential appointment from a list of nominees provided by the JBC. Given that there is currently no chief justice following Corona's impeachment, there is no ex officio chairman and, therefore, no JBC presiding officer. This is the constitutional dilemma that the Philippines is presented with — a situation of the proverbial "chicken and egg."
Many argue that the most senior associate justice, in this case Justice Antonio Carpio, should take the reigns of the Supreme Court as the acting chief justice. Jurisprudence is well-settled that such acting appointments are merely temporary ones that are only valid until a subsequent appointment is made (as determined in Austria v. Amante).
This is not the first time the Philippines have faced the sudden vacancy of a chief justice. May 17, 2010 marked the seventieth birthday and official, compulsory retirement of then Chief Justice Renato Puno. This presented a unique constitutional question considering that the national elections were held on May 10, 2010. Two days after the 2010 general election, and approximately one month before the expiration of President Gloria Macapagal-Arroyo's term, the former president appointed Associate Justice Renato Corona to succeed Renato Puno as chief justice. This move was heavily criticized by legal experts owing to a constitutional prohibition that bars the president from making appointments in the time period beginning two months before the election up to the end of his or her term. Thus, Corona was considered by some to be a "midnight appointee" whose appointment was made during this banned period.
While Aquino has vowed that he is in "no rush" to appoint the next chief justice, following Corona's impeachment and conviction it may be well for the president to reconsider the timing and urgency of that appointment. Indeed, an impeachment "hangover" has been weighing on the shoulders of every Filipino this past week. There is no question that the impeachment trial itself had diverted much national energy from ordinary business, including judicial business, to that trial. It would be very appropriate, if not urgent, for the president to make an appointment.
Edsel Tupaz is a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.
Ira Paulo Pozon is Head of the Vice Presidential Special Concerns Unit of the Vice President of the Philippines. He also serves as Legal Counsel and International Relations Officer to the Vice President. He acquired his MBA from the De La Salle University and his Juris Doctor from the Far Eastern University. His interests lie in corporate law, banking, trade and investment law, comparative public law and international relations. He currently teaches at the College of Law of the University of the City of Manila.
Suggested citation: Edsel Tupaz and Ira Paulo Pozon, Corona Impeachment Creates Constitutional Vacuum, JURIST - Sidebar, Jun. 11, 2012, http://jurist.org/sidebar/2012/06/tupaz-pozon-corona-vacuum.php.
This article was prepared for publication by Leah Kathryn Sell , an associate editor of JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org.